Searches Incident to Arrest, State v. Pagnani, 2018 ME 129.
Posted by Edmund R. Folsom, Esq.
September 23, 2018
“Why do you weasel?” Cal Kuenzel, contracts professor, Stetson University College of Law, responding to an answer given by a student under Socratic questioning, circa 1982.
“Change the Rules, I-Man!” Sports commentator Warner Wolf, on Imus in the Morning, on how to avoid undesired outcomes in sports.
“If you don’t get anything else out of law school, you’ll always recognize bulls—t when you see it now.” Jonathan Alpert, 1st semester property professor, Stetson University College of Law, 1981.
I think the Law Court got things wrong recently, in State v. Pagnani, 2018 ME 129, and I will tell why, if you are interested. This post is long, I admit, but I wrote it to serve two purposes. Hopefully, at least a few readers will hang in there to the end. The first purpose is to try to make the law of searches incident to arrest a little more accessible to the non-lawyer. The second is to apply the information to the facts of State v. Pagnani, to demonstrate how a particular result was achieved through a bit of fudging and obfuscation. You can agree or disagree, but at least you might better understand the legal concepts and make a more informed judgment for yourself. With that, let’s begin.
The Facts of State v. Pagnani.
Around noon on January 17, 2017, an Auburn Police officer saw Donna Pagnani, with whom he was familiar, drive her vehicle away from the Androscoggin County Courthouse. We will call this officer, Officer A. Officer A thought Pagnani’s license might be under suspension. He ran a license check and confirmed that it was. By the time Officer A confirmed Pagnani’s license status, Pagnani was gone, so Officer A drove his unmarked police cruiser to a spot near Pagnani’s residence and waited for her. After about 2 hours, Officer A spotted Pagnani driving toward her home. He turned on his blue lights and followed Pagnani into her driveway. When Pagnani got out of her vehicle, Officer A approached and told her that her license was suspended for failing to pay a fine (which was a criminal and therefore arrestable offense because Pagnani had a previous OAS conviction). Pagnani told Officer A that her license was not suspended. She handed over her license, registration and proof of insurance and made a phone call to the Violations Bureau (which handles fine payments for traffic infractions in Maine) to verify that she had paid the fine. Officer A ran another license check and confirmed that Pagnani’s license was in fact suspended. Officer A then asked Pagnani about a pending drug trafficking charge that he believed she had in New Hampshire. Pagnani told him the charge had been dropped. Officer A asked Pagnani if she had any weapons on her. She said she did not. Officer A asked if Pagnani would allow him to search her vehicle. She said no. At that point, Officer A told Pagnani she was under arrest for operating after suspension.
Pagnani told Officer A she had not done anything wrong and she asked for more time to speak to someone at the Violations Bureau. Although Officer A told Pagnani several times to put her phone down, she continued to speak to someone on it. Pagnani walked away from Officer A and onto her porch, despite Officer A telling her not to. Once Pagnani reached the porch, she took off her jacket, put it on a chair and continued talking on her cell phone. A short while later, she sat in the chair, on top of the jacket. The officer called for backup. When backup arrived, Officer’s B and C handcuffed Pagnani and walked her down the porch stairs to Officer A’s police car. As Officers B and C were walking the handcuffed Pagnani down the stairs, one in front of Pagnani and the other behind, Officer A picked Pagnani’s coat up off the chair and began searching it. Somewhere in the jacket, Officer A found a small chunk of what he believed, based on training and experience, to be cocaine base. Officer A then told Officers B and C he was going to “toss the car” and told them to take Pagnani’s keys from her. Officer A searched Pagnani’s car and located 5 small bags containing what he believed to be heroin.
Pagnani was charged with OAS, possession of drugs and furnishing drugs. She filed a motion to suppress evidence, claiming the searches of her jacket and the car were unreasonable under the Fourth Amendment to the United States Constitution. The trial court granted the motion and suppressed the evidence on grounds that neither the warrantless search of Pagnani’s coat nor of her vehicle was valid as a search incident to arrest. On appeal the Law Court reversed the ruling as to the search of the coat but upheld the ruling as to the vehicle search. There is no question about the correctness of the ruling on the search of the vehicle, given the state of the evidence presented at the hearing on the motion to suppress. The issue I will explore here is the Law Court’s reversal of the trial court’s ruling on the search of Pagnani’s jacket, but because understanding that issue requires some background in the law of searches incident to arrest, that is where we will go next.
The Law of Searches Incident to Arrest.
To begin at the beginning, the Fourth Amendment to the United States Constitution states: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” As interpreted by the U.S. Supreme Court, the Fourth Amendment presumptively requires police to have a search warrant in order for a search to be reasonable under the Fourth Amendment. There are a number of recognized exceptions to the search warrant requirement, but if police conduct a Fourth Amendment search without a warrant and no recognized exception to the search warrant requirement applies, the search is unreasonable. Also, as a general rule, the fruits of an unreasonable search are excluded from use at trial against a person whose Fourth Amendment protections were violated by the unlawful search.
A criminal defendant who believes his or her Fourth Amendment rights have been violated can file a motion to suppress evidence. The court will hold a hearing and render a decision as to whether a Fourth Amendment violation occurred and, if so, whether evidence should be suppressed (excluded from use at trial) as a result. In Pagnani, there was no question that Officer A conducted a Fourth Amendment search of her jacket and of her vehicle. The Supreme Court uses two distinct tests to determine whether a Fourth Amendment search occurred. The more widely applied test asks whether the person claiming the violation had a reasonable expectation of privacy in the place or the item intruded upon. The less widely applied test, but one that has seen a resurgence in recent years, is the test that asks whether police intruded upon “persons, houses, papers [or] effects,” as protected by the express language of the Fourth Amendment.
There is no doubt Pagnani had a reasonable expectation of privacy in her jacket and her vehicle or that the jacket and vehicle police intruded upon were her “effects.” This brings us to whether the search of the jacket or the search of the vehicle was “unreasonable” under the Fourth Amendment. Each was conducted without a search warrant, so each was unreasonable unless justified by a recognized exception to the search warrant requirement. The issue in Pagnani was whether the “search incident to arrest” exception to the search warrant requirement applied. If this exception applied to each search, each search was reasonable under the Fourth Amendment. However, because no other search warrant exception conceivably applied, the searches were unreasonable unless the search incident to arrest exception applied. Because there was no question Pagnani had standing to assert the Fourth Amendment violation– she, personally, had a reasonable expectation in each item searched and each item was one of her “effects” – and because there was no issue raised as to whether the exclusionary rule applied, the drugs would be suppressed as evidence if the searches were unreasonable. This is exactly what happened at the trial court level. The court ruled that the search incident to arrest exception did not apply to the warrantless searches. Accordingly, the court granted the motion to suppress, ruling that the drugs could not be introduced as evidence against Pagnani. The State appealed that ruling to the Law Court, asserting that the search incident to arrest exception applied and that the trial court committed error in finding it did not apply.
Understanding whether the search incident to arrest exception applied to the searches in Pagnani, requires an understanding of the foundation and scope of this particular search warrant exception. Let’s begin with Chimel v. California, 395 U.S. 752 (1969). Police went to Chimel’s home to arrest him on a warrant for burglary. They did not have a search warrant for the home, but after they handed the arrest warrant to Chimel they searched his entire home anyway. In the course of that search, police located evidence that they used against Chimel in his prosecution for burglary. Chimel moved to suppress the evidence on grounds that the lack of a search warrant made the search unreasonable under the Fourth Amendment. The lower courts held that the search was justified as a search incident to Chimel’s arrest. They understood the U.S. Supreme Court case, United States v. Rabinowitz, 339 U.S. 56 (1950), to say that a legitimate search incident to arrest encompasses the area under the control of the arrested person. In their view, because Chimel’s entire house was an area under his control, the search of his entire house was justified as a search incident to his arrest. The U.S. Supreme Court rejected this view of the legitimate scope of a search incident to arrest. In doing so, the Court explained the rationale that underlies the exception and described the exception’s physical scope. As to the underlying rationale, the Court explained, “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape… In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” As to the physical scope of such searches, the Court had this to say: “There is ample justification…for a search of the arrestee’s person and the area ‘within his immediate control’ – construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”
From this, it is clear that the legitimate scope of a search incident to arrest includes a search of the arrested person and a search of the area from which that person might gain possession of a weapon or destructible evidence. It is also clear that the underlying reason for allowing warrantless searches incident to arrest within the arrestee’s area of immediate control is that they are “reasonable” given the urgency of locating weapons and destructible evidence within this scope. In this connection, the Court explained that the determination of what is “reasonable” is not arrived at simply by applying one’s own judgment to the question. The Court quoted Justice Frankfurter on the matter: “What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response.” In other words, the test is not simply whether a judge finds the search to be reasonable in accordance with his or her personal predelictions.
Searches of “The Person” Incident to Arrest, as Distinct from Searches of the Person’s “Area of Immediate Control.”
After Chimel, the Supreme Court decided United States v. Robinson, 414 U.S. 218 (1973). Robinson was arrested for driving after license revocation. In the course of effecting a “full-custody arrest,” the arresting officer patted Robinson down and felt something in his coat pocket. The officer reached into the pocket and felt the object, then pulled out a crumpled cigarette pack that he could tell did not contain cigarettes but did contain something else. The officer opened the crumpled pack and found 14 gelatin capsules containing white powder that turned out to be heroin. Robinson moved to suppress the evidence, arguing that the warrantless search violated the Fourth Amendment because the officer who patted him down had no reason to suspect he possessed a weapon and so had no grounds to search his coat or inspect the contents of the cigarette pack. The Supreme Court ruled that the search was valid as a search incident to arrest. In describing the physical bounds of a valid search incident to arrest, the Robinson Court stated:
This general exception has historically been formulated in two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.
Examination of this Court’s decisions shows that these two propositions have been treated quite differently. The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged until the present case. The validity of the second proposition, while likewise conceded in principle, has been subject to differing interpretations as to the extent of the area that may be searched.
The officer who patted Robinson down conducted a search incident to arrest of Robinson’s person, as distinct from a search incident to arrest of the area within Robinson’s control. From the Supreme Court’s own cases and what the Court could “glean from the history and practice in this country and in England,” there was nothing to suggest that an officer conducting a search incident to arrest of the person was limited to searching only for weapons, or that such searches were allowed only if there was reasonable articulable suspicion that the arrestee was armed. The Court stated, “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under that Amendment.” Because the officer came upon the crumpled cigarette pack during the course of a lawful search of Robinson’s person incident to a lawful custodial arrest, the officer was entitled to inspect that cigarette pack, and when he found the heroin, he was entitled to seize it as contraband.
Robinson informed us that the rules for searches incident to arrest might be somewhat different as pertains to searches of the arrestee’s person versus searches of the arrestee’s area of control, but as to searches of the person, anything on the person may be inspected without further particularized justification. In other words, as to a search of the person there is no need for suspicion that any particular item contains a weapon or destructible evidence. Referring to the language of the Fourth Amendment, it protects against “unreasonable” searches and seizures. Because history shows that unrestricted searches of the person incident to arrest were considered “reasonable” when the Fourth Amendment was ratified, such searches are more than just an exception to a general rule that searches require a warrant in order to be reasonable.
Still, Robinson involved a search of the person simultaneous with the arrest, which was in that sense truly “incident” to the arrest. What happens if police seize and search clothing that a person was wearing at the time of arrest, but do not search it until hours after the arrest? Is the search of the arrestee’s clothing at that later time still a search incident to arrest of the person? This question was raised in United States v. Edwards, 415 U.S. 800 (1974). Edwards was arrested around 11:00 p.m. one night for attempting to burglarize a Post Office. Police took him to jail and put him in a cell overnight. Investigators discovered that the Post Office had been entered through a window that had been pried open, leaving paint chips on the windowsill and screen. The next morning, police bought clothes for Edwards. They took his clothing from him and gave him the new clothes to wear. Police found paint chips on Edwards’ clothing and used it as evidence against him. Edwards sought to suppress the evidence as illegally seized under the Fourth Amendment. The Supreme Court held that the warrantless search was justified as a search incident to the arrest of his person. The Court observed that the clothing could have been searched as an incident to Edwards’ arrest, simultaneously with the arrest, stating, “[I]t is difficult to perceive what is unreasonable about the police’s examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.” The Edwards Court agreed with appellate courts that, as the Edwards Court put it:
have long…concluded that, once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the “property room” of the jail, and at a later time searched and taken for use at the subsequent criminal trial.
Searches of Items in an Arrestee’s Area of Control versus Searches of the Person Incident to Arrest.
Does this mean that police may search anything that is subject to a search incident to arrest at the time of the arrest, regardless whether a substantial amount of time has passed since the arrest, as long as the arrested person remains in police custody at the time of the search? No, it does not. In United States v. Chadwick, 433 U.S. 1 (1977) the Supreme Court disapproved of the search of a foot locker more than an hour after the arrest of those who possessed it when they were arrested. Chadwick involved 3 people suspected of involvement in transporting marijuana in a footlocker, by train, between San Diego and Boston. The three were arrested immediately after they placed the footlocker in the trunk of a car. All three arrestees and the footlocker were taken to the federal building in Boston. More than an hour later, agents opened the locked footlocker and searched it without a warrant, finding a large amount of marijuana that was used as evidence against the defendants. One of the Government’s arguments was that the search of the footlocker was valid as a search incident to arrest. Without directly addressing whether the footlocker was in the area of immediate control of the arrestees at the time of arrest (it clearly was not at the time of the search), the Supreme Court stated:
[W]arrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest [internal citation omitted].
What explains the difference between Chadwick and Edwards? In a footnote, the Chadwick Court explained the distinction, as follows: “Unlike searches of the person, United States v. Robinson, 414 U.S. 218 (1973); United States v. Edwards, 415 U.S. 800 (1974), searches of possessions within an arrestee’s immediate control cannot be justified by any reduced expectations of privacy caused by the arrest. Respondents’ privacy interest in the contents of the footlocker was not eliminated simply because they were under arrest.” This returns us to the distinction pointed out in Robinson between searches of the person incident to arrest and searches of the arrestee’s area of immediate control. Personal property “not immediately associated with the person of the arrestee,” but instead only within the arrestee’s area of immediate control, is not searchable once the property is in the exclusive control of police and there is no longer any danger the arrestee might gain access to it to seize a weapon or destroy evidence. On the other hand, if personal property is immediately associated with the person, the person has a diminished expectation of privacy in it as a result of the arrest, allowing for it to be searched even once it is in the exclusive control of the police and even if the search is remote in time from the arrest. Why does the arrested person have a diminished expectation of privacy in personal property immediately associated with the person but not in property that is merely in the person’s area of immediate control at the time of arrest? Apparently because property immediately associated with the person necessarily falls into police custody along with the person—it is, in effect, automatically arrested along with the person.
Chimel and Chadwick do not tell us is how long after a person is placed into custody police may search an item of personal property within that person’s area of immediate control. Chadwick also does not answer the related question whether the person’s area of immediate control is to be determined at the point the person is placed in custody, or at the point the search is conducted, or at some other time. The lack of clear guidance on these issues led to lots of confusion in the context of arrests resulting from automobile stops. Can police search an entire automobile, without probable cause, incident to arrest? The Supreme Court decided this issue in New York v. Belton, 453 U.S. 454 (1981), where it announced:
While the Chimel case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of the area within the immediate control of the arrestee when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m]. In order to establish the workable rule this category of cases requires, we read Chimel‘s definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that, when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach [internal quotes and citations omitted].
The Belton Court declared that its bright line rule was necessary to ensure police would know the scope of a legitimate search of an arrestee’s area of control in the automobile context, in much the same way the Court believed the bright line rule of Robinson made the rule on searches incident to arrest of the person clear and easy to apply. What Belton’s bright line rule did not make clear, however, was how long after the arrest of a recent automobile occupant a search could still be conducted of the passenger compartment and its contents “incident to arrest,” or whether the search could be conducted even after the person could no longer conceivably reach any weapon or destructible evidence in the vehicle’s interior. Belton’s rule was taken by police to essentially allow the same leeway for searches of a vehicle and its contents as Robinson allowed regarding searches of the person and all items found on the person incident to arrest. For many years, courts endorsed this view of Belton. In fact, in 2004, the Supreme Court, in Thornton v. United States, 541 U.S. 615 (2004), even approved of the search incident to arrest of a vehicle where the driver was first accosted by police after he got out of his car in a parking lot, and where the search took place after the driver was handcuffed and was placed in the back seat of a police cruiser. A majority of the Supreme Court found no ground to distinguish circumstances where the arrested person is first approached outside a vehicle that he has recently occupied and one where, as in Belton, the person is first approached while in the vehicle but is outside it when arrested. The Court conceded that it was unlikely either Thornton or the recent vehicle occupants in Belton could have reached the respective vehicles to access a weapon or evidence, stating, “It is unlikely in this case that petitioner could have reached under the driver’s seat for his gun once he was outside of his automobile. But the firearm and the passenger compartment in general were no more inaccessible than were the contraband and the passenger compartment in Belton.” Nevertheless, the Thornton majority stated, “The need for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment, justifies the sort of generalization which Belton enunciated.”
There were, however, rumblings in Justice Scalia’s concurrence that the Belton rule had resulted in police practices so far removed from Chimel’s stated justifications for searches incident to arrest of an arrestee’s area of control that: “[I]n our search for clarity, we have now abandoned our constitutional moorings and floated to a place where the law approves of purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find.” Justices Scalia and O’Connor both took issue with the position law enforcement advanced, that they should not be penalized for taking the precaution of handcuffing an arrestee and placing him in a police cruiser before conducting a search, rather than leaving the arrestee with access to the automobile during the search. To this, Scalia said, “conducting a Chimel search is not the Government’s right; it is an exception — justified by necessity — to a rule that would otherwise render the search unlawful. If ‘sensible police procedures’ require that suspects be handcuffed and put in squad cars, then police should handcuff suspects, put them in squad cars, and not conduct the search.” In her separate concurrence, Justice O’Connor expressed her own concern that, although the court’s decision in Thornton was a “logical extension of the holding of New York v. Belton… lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement, rather than as an exception justified by the twin rationales of Chimel v. California, 395 U.S. 752 (1969).” Several years after Thornton, the Supreme Court reexamined Belton.
In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court declared that Belton’s bright line rule, allowing a search of the vehicle’s interior and all containers in it, does not apply to every case in which a recent occupant of a vehicle is arrested. Gant “was arrested for driving with a suspended license, handcuffed and locked in the back of a patrol car” before police searched his vehicle and found cocaine in the pocket of a jacket on the back seat. The Supreme Court found Belton to be factually distinct from Gant, in that Belton involved one officer who dealt with four unsecured arrestees suspected of a drug offense, versus Gant, which involved several officers dealing with a securely detained arrestee who was arrested for driving with a suspended license. The Court declared, “To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would…untether the rule from the justifications underlying the Chimel exception,” expressly holding that “the Chimel rationale authorizes police to search a vehicle incident to arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Otherwise, the Court stated, “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”
Hang in there with me a little longer. We are nearly done with the background. The final case to review before plunging into State v. Pagnani is Riley v. California, 573 U.S. __, 134 S.Ct. 2473 (2014). Keep in mind that Chadwick, Belton and Gant dealt with limitations on searches incident to arrest within an arrestee’s area of immediate control, as distinct from searches incident to arrest of the person. On the other hand, like Robinson and Edwards, Riley v. California, dealt with a search incident to arrest of the person. Prior to Riley, the Supreme Court had not defined any limitation on searches of items located on an arrestee’s person. In Riley, the Supreme Court drew a line at searches of cell phones incident to arrest, carving out an exception to the exception for this particular type of personal property. Riley was a consolidation of two cases. One of those cases involved the police search of a smart phone found in David Riley’s pants pocket incident to his arrest for possessing a concealed and loaded firearm. In an initial search of the phone, police discovered evidence of gang affiliation. Police resumed the phone search at the police station about 2 hours after Riley’s arrest. Evidence found on the phone was used to prosecute Riley for involvement in a shooting that had occurred a few weeks before.
The second consolidated case involved the search of a flip phone found on Brima Wurie’s person incident to his arrest for selling drugs. At the police station, police noticed that the phone was receiving repeated calls, so they opened it and observed its contents. Information police found on the phone was used to secure a warrant for Wurie’s house, where police found drugs, a firearm and cash that were used to prosecute Wurie. If the only rules that applied were the broad rules of Robinson and Edwards, the searches of Riley’s and Wurie’s cell phones would be legitimate searches incident to arrest of the person. Robinson allows searches of all items of personal property found on an arrestee’s person incident to arrest, and Edwards allows the search of such items well after the arrest occurs, even when the items are in the exclusive control of police, at least when the search takes place at the place of detention, while the person is still detained. However, the Riley Court held that the cell phone searches there violated the Fourth Amendment because they were conducted without a search warrant. The Court arrived at this conclusion because cell phone searches are categorically much different than searches of other items of personal property incident to arrest of the person.
The Robinson rule was based on guidance from the founding era as to the reasonableness of searching physical objects found on a person incident to arrest. But nothing from the founding era provides much guidance regarding searches of digital information contained in cell phones found on a person incident to arrest. The Riley Court asked, citing Arizona v. Gant, “whether application of the search incident to arrest doctrine to this particular category of effects would untether the rule from the justifications underlying the Chimel exception.” The lack of guidance from the founding era regarding the reasonableness of such searches led the court to apply a test that balances the intrusion on individual privacy against the degree to which allowing the searches incident to arrest promotes legitimate government interests. Certainly, cell phones are not weapons and so do not fall within the weapons-search justification of Chimel. Nor is there much risk of evidence destruction if cell phones are not searched incident to arrest. Given the vast amount of personal information stored on cell phones and the minimal degree to which governmental interests are promoted by allowing them to be searched incident to arrest of the person, the Court determined that searches for digital data on cell phones incident to arrest are unreasonable. The court concluded, “Our answer to the question of what police must do before searching a cell phone incident to an arrest is…simple—get a warrant.”
Applying the Supreme Court’s Search Incident to Arrest Rules to Pagnani’s Facts.– Was the Search of Pagnani’s Jacket a Search of her Person Incident to Arrest?
This brings us to State v. Paganani. Where did the Law Court go wrong? First, to determine whether the search of Pagnani’s jacket was valid as a search incident to arrest, we need to decide whether the jacket search was either a search of Pagnani’s person incident to arrest or a search of Pagnani’s area of immediate control incident to arrest. In Pagnani, the Law Court states, “The first question we must address…is whether the search of Pagnani’s jacket was proper as a search ‘incident’ to her arrest. As the Supreme Court stated in Riley, ‘the extent to which officers may search property found on or near the arrestee’ has been debated for nearly as long as the exception has been recognized.” Immediately following this, the Court states that the Pagnani facts “are particularly analogous to those in Robinson.”
While it is true that the extent to which officers may search property found on or near an arrestee has long been debated, it is also true that, at this point, much of the debate has been settled. One thing that has been settled is the distinct difference between the scope of a search of the person incident to arrest and the scope of a search of the person’s area of immediate control incident to arrest. Robinson unquestionably involved a search of Robinson’s person, in that the searched cigarette pack was found in the pocket of a coat Robinson was wearing at the time of his arrest. If the facts of Pagnani are so analogous to the facts of Robinson that the search of Pagnani’s jacket was a search of Pagnani’s person, then we know that police were categorically justified in searching the jacket and physical items within it incident to Pagnani’s arrest. We know this because Robinson says so. While Riley sets a limitation on searches incident to arrest of the person, treating cell phones as categorically different than other items of personal property and setting them off limits, Pagnani does not run afoul of the Riley limitation because the Pagnani search was not for digital information on a cell phone. Also, if the search of Pagnani’s jacket was categorically a search of her person incident to arrest, that search could legitimately have been conducted even well after Pagnani was placed under arrest, according to Edwards, as further explained by Chadwick and by Riley (where the fact that the searches of the cell phones took place well after arrest, at the police station, played no part in the Court’s determination that the searches were unreasonable). On the other hand, if the search of Pagnani’s jacket was not a search of her person, it can only have been justified if it was part of a search of Pagnani’s area of immediate control incident to her arrest. It is therefore important to determine whether or not the jacket search was, categorically, a search of Pagnani’s person incident to her arrest. But the Law Court did not bother to make this determination.
After declaring that Pagnani’s facts are particularly analogous to those of Robinson, the Court stated, “If Pagnani had been wearing her jacket at the moment she was handcuffed, there would be no question that the search of her jacket would have been proper as a search incident to arrest for which no warrant is required.” But, as the Court points out, Pagnani had taken her jacket off and had begun sitting on it well before she was taken into physical custody, even before Officer A called for backup. Here, I am reminded of the remarks of Justices Scalia and O’Connor in their concurrences in Thornton, regarding judicial treatment of searches incident to arrest as a law enforcement entitlement, rather than as an exception to the warrant requirement, justified by necessity, that allows otherwise unlawful searches to take place. As the Pagnani dissent remarked on the point the majority made here, “That point persuasively demonstrates why the search that was actually conducted was illegal. Pagnani was not wearing her jacket – and did not have access to it – when the search occurred.” But I digress…
Was the search of Pagnani’s jacket a search of Pagnani’s person incident to arrest? As the Supreme Court explained in Chadwick, and recited again in Riley, searches of the person incident to arrest are limited to personal property that is “immediately associated with the arrestee.” The cigarette pack in Robinson’s coat pocket at the time of his arrest; the clothing worn by Edwards at the time of his arrest; and the phones carried by Riley and Wurie at the time of their arrests were all items of personal property immediately associated with each at the time of their arrest — these items of personal property were actually “on” each of them when they were arrested. As to whether Pagnani’s jacket was immediately associated with her when she was arrested, the Law Court had this to say:
The officer continued to tell Pagnani that she was under arrest and not to walk away, but she did not cooperate. Although Pagnani removed her jacket before being handcuffed, she had been told she was under arrest before she removed the jacket, and the jacket, though she was no longer wearing it, remained associated with her person. Because the jacket was on Pagnani’s person at the time that she was advised that she was under arrest and remained associated with her person, even as she sat on the jacket, see Chimel, 395 U.S. at 7555-56, 763, the officer’s search of the jacket was a lawful search incident to arrest.
At What Point Did Pagnani’s Arrest Occur, and Was Her Jacket Immediately Associated with her Person at that Point?
Note that the Court did not say Pagnani’s jacket was “immediately associated” with her at the time of arrest, but instead that it remained “associated” with her when she was sitting on it, which is not the Supreme Court’s test. While it is true that Pagnani was wearing the jacket when she was told she was under arrest, does that mean she was wearing the jacket when she was arrested? No, it does not. In California v. Hodari D., 499 U.S. 621 (1991), the Supreme Court was called upon to decide whether Hodari D. was subjected to a Fourth Amendment “seizure” when he was chased by a police officer who ordered him to stop, even though Hodari D. did not stop but continued running from the officer. The Court ruled that a mere police show of authority is not enough to effect a Fourth Amendment seizure. Hodari D. argued that he was “seized” as soon as the police ordered him to stop, because, he argued, the order to stop constituted a common law arrest. The Supreme Court responded that an arrest requires either the laying on of hands or application of physical force to restrain movement, or the person’s submission to the officer’s assertion of authority. Because the officer did not lay hands on Hodari D. or otherwise apply physical force to restrain his movement at the pertinent time, and because Hodari D. did not submit to the officer’s assertion of authority, Hodari D. was not “seized” within the meaning of the Fourth Amendment, let alone arrested at that point.
The same was true of Pagnani when she was still wearing her jacket. At that time, she had not submitted to the officer’s authority and the officer had not laid hands on her or otherwise applied physical force to restrain her movements. Neither occurred until Pagnani was placed in handcuffs, which was well after she removed her jacket. It is therefore irrelevant to a search incident to arrest analysis that Pagnani was wearing her jacket when she was first told she was under arrest, because that is not the point at which she was arrested. Although the Pagnani majority does not come right out and say Pagnani was arrested while she was still wearing her jacket, they do suggest she might have been, by quoting State v. Moulton, 1997 ME 228, 704 A.2d 361 for the proposition that a “seizure of the person occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of the citizen such that he is not free to walk away.” But as our examination of Hodari D. shows, there is a bit more to it than that, and Pagnani was not arrested or otherwise seized, for Fourth Amendment purposes, when she was wearing her jacket. So why would the Law Court suggest she might have been? The majority also claims that Chimel holds, “once the police arrest or have probable cause to arrest a suspect they do not need a warrant to search for weapons or evidence of criminal activity that might be readily moved or destroyed” [Emphasis added]. But, Chimel does not say police may conduct a search incident to arrest, either of the person or of the person’s area of immediate control, merely upon having probable cause to arrest. Chimel says such searches may be conducted “when an arrest is made.” Why the does the Law Court distort this point?
Was Pagnani’s Jacket Nevertheless Immediately Associated with her Person, for Search Incident to Arrest Purposes?
Let’s turn to the time when Pagnani actually was arrested, when police applied physical force and handcuffs to restrain her movements, and when she, coincidentally, submitted to their authority. Even though she was not wearing the jacket at that point, was the jacket nevertheless “immediately associated with” her person within the meaning of Chadwick, Riley and the exception for searches of the person incident to arrest? Although the Pagnani majority does not claim that Pagnani’s jacket was “immediately associated with” her person at that time, they do say the jacket “remained associated with her person.” Note the difference. Although Chadwick and Riley do not expressly define what it means for personal property to be “immediately associated with the person,” the facts and context of those cases provide guidance to the meaning of the terms. Again, in Robinson, the cigarette pack and contents were in the pocket of a coat Robinson was wearing when he was arrested. The clothing at issue in Edwards was worn by Edwards when he was arrested. The smart phone carried by Riley was found in the pocket of clothing Riley was wearing when he was arrested, and the flip phone carried by Wurrie was described as having been found “on” Wurrie when he was arrested.
On the contrary, the foot locker in Chadwick was not in Chadwick’s clothing or otherwise “on” Chadwick when he was arrested. The items of personal property that were on the persons of Robinson, Edwards, Riley and Wurrie were automatically “seized” along with Robinson, Edwards, Riley and Wurrie at the moment they were arrested. These items of person property were necessarily going to travel through the arrest process along with their owners, who wore those items on their bodies or had those items in their pockets, except to the extent the items were intercepted and diverted by police from the remainder of the trip through the arrests process. On the other hand, the footlocker in Chadwick, was not an item that was automatically arrested along with Chadwick.
This is the distinction the Chadwick Court was getting at in pointing to the diminished expectation of privacy that a person has in items that are “immediately associated with” the person at the time of arrest, versus items that are merely in the person’s area of immediate control at that time. Items that are immediately associated with the person are necessarily rendered into police custody at the time of arrest because they are items that necessarily will accompany the person through the arrest process. Although an item of clothing that the person is wearing, or an item in the pocket of such clothing, or an item in the person’s hand at the moment of arrest necessarily accompanies the person during arrest, the same is not true of an item lying next to a person at the time of arrest or an item on which a person is sitting at the time of arrest.
The Pagnani majority blurs this distinction. The Pagnani majority does not expressly state that Pagnani’s coat was searchable as part of a search incident to arrest of her person. Instead, they tell us that her coat was searchable incident to arrest, generally, because “she had been told she was under arrest before she removed the jacket” and that, because the jacket “remained associated with her person, even as she sat on the jacket…the officer’s search of the jacket was a lawful search incident to arrest.” But if the jacket was not “immediately associated with” Pagnani when she was in fact arrested, it was not searchable as part of a search of her person incident to arrest. If the jacket was not searchable as part of a search of Pagnani’s person incident to her arrest, the only type of search incident to arrest that could justify it is a search of Pagnani’s area of immediate control. So was Pagnani’s jacket in her area of immediate control?
Was Pagnani’s Jacket in Her Area of Immediate Control for Search Incident to Arrest Purposes?
This is where Gant comes in. Gant teaches that the person’s area of immediate control is to be determined at the point the search is conducted. An item is not within an arrested person’s area of immediate control once the person has been secured and is unable to reach that area by the time the search is conducted. To allow the search of an area that an arrestee can no longer access would “untether the rule from the justifications underlying the Chimel exception,” because such a search cannot be justified by the need to prevent access to a weapon the person might use against police or an article of evidence that the person might destroy. Gant rejected the bright line interpretation of Belton that would have allowed searches of the entire passenger compartment and contents of automobiles in such circumstances, because categorically allowing such searches would have untethered the rule from the justifications underlying the Chimel exception. The search incident to arrest exception is just as untethered from the justifications underlying the Chimel exception if it allows police to search areas a person can no longer access at the time of the search on a case-by-case basis as it is if police are allowed to search such areas on a categorical basis. In this connection, the Pagnani majority declares that, in its view, “applying the search incident to arrest doctrine to the search of Pagnani’s jacket would not ‘untether the rule from the justifications underlying the Chimel exception.’” But, in Gant, the Supreme Court determined that applying the search incident to arrest doctrine to allow searches of an item not in the person’s area of immediate control when the search is conducted does untether the rule from the justifications underlying the Chimel exception. On what authority does the Law Court revisit that determination?
To bolster its assertion that applying the search incident to arrest exception to the search of Pagnani’s jacket does not “untether the rule from the justifications underlying the Chimel exception,” the Pagnani majority lifts the quoted passage regarding an untethered rule from the Supreme Court’s Riley opinion. In Riley, this passage appears in the Court’s explanation of what it was up to in relation to Robinson’s bright line rule on searches of the person incident to arrest. The Riley Court explained that it was not rejecting Robinson‘s categorical rule in favor of case-by-case adjudication of the likelihood that Chimel concern are present in the given case. Instead, the Riley Court explained, it was inquiring whether application of the categorical Robinson rule to searches of cell phones, as a distinct category of personal property, would untether the rule on searches incident to arrest of the person from the justifications underlying the Chimel exception. Because of the highly intrusive nature of cell phone searches, balanced against the marginal degree to which such searches serve the justifications for Chimel searches, the Robinson Court decided that allowing such searches would, in fact, untether the search incident to arrest rule from the justifications underlying the Chimel exception. This was a categorical determination, bearing on searches that would otherwise be allowed under the Robinson exception. As discussed above, however, the search of Pagnani’s jacket does not fall within the categorical Robinson exception for searches incident to arrest of the person. Therefore, there is absolutely no basis for the Law Court to use the passage it quoted from Riley as an excuse to examine whether applying the Robinson rule would untether the search incident to arrest rule from the justifications underlying the Chimel exception – the Robinson rule simply does not apply to the search of Pagnani’s jacket to begin with.
Immediately after the Pagnani majority declares that allowing the search of Pagnani’s jacket incident to arrest does not untether the search incident to arrest doctrine from the justifications underlying the Chimel exception, they launch into a discussion of searches incident to arrest “of an area, not the person.” At this point, the majority declares that the area that is searchable incident to arrest does not “admit of precise delineation,” and so must be determined on a case-by-case basis. In this, the majority appears to admit that the search of Paganani’s jacket is not justified as a search of her person incident to arrest. And yet, the majority entirely ignores what Gant teaches about the person’s area of immediate control being determined by whether the person conceivably still has access to it when the search is conducted. Instead, the majority engages in a sort of close-enough-to-look-reasonable-to-us analysis: close to a legitimate search of the person incident to arrest, and close to a legitimate search of the person’s area of immediate control incident to arrest– close enough. But it is not the Law Court’s role to decide whether a search that does not fit within a categorical exception to the search warrant requirement comes close enough to seem reasonable to the Law Court. Nor is it the Law Court’s role to decide whether a search that does not quite fit a search warrant exception should nevertheless enjoy the benefit of the exception because the Law Court does not believe that indulging the search would untether the exception from its underlying rationale.
In this approach, Pagnani is reminiscent of State v. Cormier, 2007 ME 112, 928 A.2d 753, in which the Law Court approved the constitutionality of a statute that allows the warrantless taking of a blood sample without probable cause, and the admissibility of a blood-alcohol test result, as long as probable cause for OUI exists independent of the test result by the time the result is admitted as evidence at a trial. In Cormier the Law Court acknowledged, “We recognize that a search authorized by section 2522 does not fall neatly into either [the inevitable discovery or probable cause/exigent circumstances] exception.” However, the Court went on to find that searches conducted under the statute are reasonable under the Fourth Amendment because the Legislature, in enacting the statute, “dealt with the exigencies” involved in accidents likely to result in death and “incorporate[d] the concepts of inevitable discovery.” In other words, the Law Court thought the statute was reasonable, so it was of no consequence that the searches it endorsed did not quite fit any of the categorical exceptions the U.S. Supreme Court has defined to determine whether a warrantless search is reasonable under the Fourth Amendment– Close enough!
The Pagnani dissent was having none of it. As the dissent stated, “It is an elemental principle that all searches conducted by law enforcement must be reasonable. U.S. Cont. amend. IV. Warrantless searches are per se unreasonable absent one of ‘a few specifically established and well-delineated exceptions to the warrant requirement.’” The dissent does not appear even to have entertained the possibility that Pagnani’s jacket was immediately associated with her person at the time of her arrest, instead focusing on whether the jacket was within Pagnani’s area of immediate control at the time of the search, pointing out:
Even before the officer initiated the search…Pagnani was handcuffed with her arms secured behind her, and two other officers were leading her down the porch stairs away from the jacket and toward a police cruiser. One of those officers walked in front of Pagnani and the other officer walked behind her—in other words, between her and the jacket—and held onto one of her secured arms as she was taken to and placed inside a waiting cruiser.
In other words, the jacket was not in Pagnani’s area of immediate control, and the search was therefore not justifiable as a search incident to arrest of an area under Pagnani’s immediate control. There is no legitimate alternative way of justifying the warrantless, non-consensual search of Pagnani’s jacket under the Fourth Amendment to the United States Constitution. But the majority created its own alternative way anyway, seemingly once again substituting its own sense of what is reasonable for the U.S. Supreme Court’s test of reasonableness under the Fourth Amendment to the United States Constitution.
Some might come away thinking these distinctions are small and silly, but these distinctions are all we have to define the protections of the Fourth Amendment to the United States Constitution. If police had probable cause to search Pagnani’s jacket, they could have gotten a search warrant and searched it, but they did not have probable cause. If the police had probable cause to search Pagnani’s car, they could have searched it without a warrant, but they did not have probable cause. Instead, they conducted general rummaging searches, because they could. You don’t have to be anti-cop to realize police will do whatever they are allowed to do in their quest to ferret out criminal activity wherever it might, or might not, be found. Remember, in Chimel, police searched a man’s entire house without a search warrant, purportedly incident to his arrest, simply because they could. More recently, when the Supreme Court announced that dog-sniffs for illegal drugs are not Fourth Amendment “searches,” it was not long before police began approaching the front doors of private residences with drug-sniffing dogs, to see what they might see, till the Supreme Court put a stop to it in Florida v. Jardines, 569 U.S. __, 133 S.Ct. 1409 (2013). But our Fourth Amendment protections are only as good as the local state courts that are tasked with enforcing them, and here in Maine…well, let’s just say they don’t get much backing.